The $10 million Sony BMG Music Entertainment settlement in July over payola allegations, spearheaded by New York Attorney General Eliot Spitzer, has spawned an indie label's antitrust lawsuit against
The $10 million Sony BMG Music Entertainment settlement in July over payola allegations, spearheaded by New York Attorney General Eliot Spitzer, has spawned an indie label's antitrust lawsuit against the label. And from the wording of the complaint, any similar settlement by the other major labels or radio stations could turn them into defendants.
It is possible that additional indie labels could join TSR Records' complaint, which claims that major labels keep indie-label artists off radio airwaves to exclusively promote their own artists. TSR CEO Tom Hayden tells ELW that a number of other indie labels have inquired about the suit.
The TSR complaint lists the indie label as a plaintiff suing "individually and on behalf of all others similarly situated," which is standard language for a class-action suit. The complaint, filed Oct. 18 in federal District Court in Los Angeles, refers to thousands of independent record labels and artists whose music has been "systematically excluded from radio station airtime and playlists" as a result of Sony BMG's "anticompetitive activities."
While TSR attorney Neville Johnson declined to comment on the potential to turn this action into a class-action suit, the complaint lists Maxwell Blecher as co-counsel. The two attorneys are currently representing a class of "copyright owners of musical compositions" in the same court, claiming that record clubs BMG Direct and Columbia House have failed to pay full royalties to songwriters for many years.
The TSR complaint also lists unnamed "Does" as additional defendants, alleging that "various others" have participated as co-conspirators. It then specifically refers to "the major record labels" that secure radio airtime by using in-house and independent promoters who "systematically bribe radio stations" to "ensure playtime for their records to the exclusion of independent labels," such as TSR.
"Everybody detests this side of the industry," Johnson says. "It gives the industry a bad reputation and is a waste of money-money that could be used for the creation of new product and proper marketing. A good trend has been set by Spitzer. I want to move that process along -- put some teeth into it."
According to sources, Spitzer's investigation is continuing. Sony BMG declined to comment.
Hayden says that he worked in promotion for years prior to starting his Los Angeles-based label about 25 years ago. He tells Billboard that the plight of the band Get Set Go is an example of the mainstream radio lockout of an indie artist.
While TSR was able to get a lot of college radio airplay for the band's single "Break Your Heart," he says the label could not cross it over to mainstream stations because TSR was effectively locked out as an indie label. Yet the song was used on the TV show "Grey's Anatomy," and the band's "Wait" is on the show's soundtrack album.
The complaint also alleges that major labels have engaged in "bribery," providing cash and valuable items such as electronics, vacations, airfare, concert tickets, computer equipment and other gifts to radio programmers to play their recordings.
"There are plasma TVs given to get airplay," Hayden says. "There's no way we can compete with that." He adds that indie labels simply want a level playing field -- where every promotion rep is treated equally rather than indie music being effectively shut out.
Johnson says his clients will seek "big money" to force this level playing field.